Thread by @EugeneFreedman

The 1947 Taft Hartley amendments to the Wagner Act (National Labor Relations Act) are generally despised, but there was one good thing and that was the inclusion of the "good faith" standard in 8(d) of the Act.

I've previously mentioned the duty only attaches to mandatory 1/

subjects (wages, hours, and other terms and conditions of employment) and not permissive subjects that either party can refuse to bargain over (such as supervisors' pay - or in this case minor league pay for players not on the 40-man roster).

So what is "good faith?" 2/

It's the obligation of both parties to actively participate in the deliberations so as to indicate a present intention to find a basis for agreement. It includes both an open mindedness and a desire to reach agreement.

These considerations are part of a 3/

totality of the circumstances evaluation to determine if one party (particularly employers) are not meeting their minimum obligations under the law.

Because it's a totality of the circumstances (fact based analysis) a single event or fact is not usually sufficient to 4/

create bad faith. One statement or one isolated action would not violate the overall duty.

Sometimes sweeping proposals that grant management discretion to make changes at-will over mandatory subjects can be indicia of bad faith. In these negotiations, the proposal 5/

from yesterday that would grant the Commissioner unfettered discretion to make rule changes, if after a very short period of bargaining the Union did not agree, could fall into that category. In light of the other things management has done in these negotiations, that proposal 6/

would seem ill timed at the very least.

One party's unwillingness to consider proposals within the scope of bargaining is another potential indication of bad faith. In the instant case management has refused to discuss expanding Super-Two status or revenue sharing. 7/

Dilatory tactics, such as an unwillingness to meet and confer at reasonable times and intervals can be indicia of bad faith. The 43-day Christmas vacation might constitute a willful avoidance of meetings. The premature request for FMCS assistance and 8/

statement that they would not make another proposal could be considered delaying or evasive tactics and indicia of bad faith.

On @keithlaw's podcast last week I mentioned surface bargaining, which is when an employer meets at length and confers, but is simply going through 9/

the motions of bargaining.

Inflexibility and unwillingness to seek alternative acceptable options could be seen as bad faith, however sticking by a "fair and firm" offer aka Boulwarism, is not in and of itself bad faith.

Unrealistic or harsh proposals can also be indicia. 10/

In the instant situation, management's initial CBT proposal that went backwards considerably AND increased the penalties definitely wouldn't be indicia of good faith. It's what I called an "unserious" proposal at the time. That's a term the NRLB uses in evaluating bad faith 11/

proposals.

In the instant situation, management can look to its own flexibility in agreeing to a bonus pool concept (even though the tentative agreement on the subject is not complete) as indicia of good faith. I would have a hard time identifying anything else that 12/

management has proposed that actually provides a benefit solely to the employees. The DH is a mutual interest as many have pointed out repeatedly.

There are a lot of other factors that the Board would consider, which management has not done here. It has not gone directly to 13/

employees with its proposal. It has not unilaterally changed working conditions prior to the conclusion of bargaining. It has not declared impasse improperly and imposed terms and conditions of its last, best offer. Although that has been hinted at recently. I hasn't sent 14/

people to the table who don't have the authority to reach agreement - although there was an allegation from one source that the Union had done that because the secret all-powerful Scott Boras was actually the Union's controlling hand.*

*I digress.

Without knowing the 15/

the specifics of the proposals and the back and forth on the subjects - and whether management continues to refuse to bargain over certain things, but insists on its way in others, it's impossible to really make a determination whether management is negotiating in bad faith. 16/

I haven't asserted it, because it's a complex analysis with many factors, many of which we, the public, know nothing about.

I mentioned earlier that I think it was a smart decision for the Union to stay at the table tomorrow. If they walk away it undermines an argument they 17/

may make later in a ULP charge.

All told, I'm not saying anyone is wrong who has asserted MLB is acting in bad faith. I'm just saying we don't know enough of the details to meet the legal standard required by the NLRB to issue a ULP complaint. /end